Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. We are not so much dismayed by the outcome of the writ petition but rather the manner in which the learned Judge proceeded and also by the reasons assigned for granting the prayers of the respondents.
11. In exercise of jurisdiction under Article 227 of the Constitution, the learned Judge was required to examine whether the respondents had shown sufficient cause for staying away from the proceedings of the suit after filing their written statement; in other words, whether despite showing sufficient cause, not only the trial court but also the appellate court fell in error in not accepting the explanation proffered and in setting aside the ex parte decree.
12. As referred to above, the learned Judge barely considered the application under Order IX Rule 13, CPC filed by the respondents and, thus, without even looking into the cause shown allowed the prayer for setting aside of the ex parte decree perceiving the judgment preceding it to be flawed on merits.
13. We have perused the affidavit accompanying the applications under Order IX Rule 13, CPC and Section 5 of the 1963 Act in the Misc. Case. It was averred therein that the respondent no. 1 was looking after the case on his own behalf and on behalf of the other respondents; that, he fell sick on 15th August, 1991; and that, he was so sick that he was unable to walk. A medical certificate dated 30th November, 1991 issued by a local doctor was sought to be relied on certifying that the respondent no. 1 was under his treatment from 15th August 1991 to 30th November, 1991. A written objection to the application was filed by the appellants wherein it was averred that the respondent no.1 was a resident of the same village where the appellant no.1 resided and that he has seen the respondent no. 1 moving around in a healthy state and that the medical certificate was bogus. It was further pleaded that the respondents were deliberately not participating in the proceedings and filing repeated applications for adjournment for which they were set ex parte on 24th April, 1991. [2025] 4 S.C.R. Kanchhu v. Prakash Chand & Ors. On 2nd July, 1991, evidence was recorded and 6th August, 1991 was fixed for arguments. On 24th April, 2nd July, 1991 and 6th August, 1991, the respondent no.1 was not ill as per his own case. Why did the respondents stay away from the proceedings had not been explained. Ultimately, the suit was decided ex parte on 17th August, 1991.
14. Significantly, even if the plea of the respondent no. 1 that he fell sick from 15th August, 1991 is accepted, we find that the respondents went on seeking adjournments. The appellate court in its order dated 8th October, 2002 noted that on 10 (ten) previous occasions, prayers for adjournment made by the respondents were allowed. It is also found that the respondents stayed away from the trial court months before the claimed illness of the respondent no.1. No wonder, due to their absence, the respondents were set ex parte by the trial court on 24th April, 1991. The respondents never explained what was the real cause for the suit to proceed ex parte. The cause shown falls much short of an explanation and we are inclined to view it as nothing but a lame excuse. In view of the specific objection taken by the appellants, one would have thought that the respondents would step on to the witness box and prove the case set up in the applications. Neither did the respondent no.1 and the co-respondents nor the so-called attending doctor of the respondent no.1 stepped into the witness box to prove that the respondent no.1 was ill; the appellant no.1 was not, therefore, proved wrong. Assuming that the respondent no. 1 was so sick which prevented him from attending the court, there is no explanation either as to why the other respondents after filing of the written statement had not shown any interest to contest the suit.
15. While hearing the application under Order IX Rule 13, CPC as well as the miscellaneous appeal, the trial court and the appellate court, respectively assigned cogent reasons for not accepting the cause shown by the respondents. Since the learned Judge did not refer to the orders dated 23rd July, 2002 and 8th October, 2002 passed by the said courts at all, we do not have the benefit of ascertaining how the trial court and the appellate court went wrong in not allowing the application for setting aside the ex parte decree.
16. It is truism that vigilance and diligence go hand-in-hand, making them two sides of the same coin, when it comes to pursuing/defending a legal action. In this case, not only vigilance and diligence on the part of the respondents are woefully lacking but such lack is glaringly apparent. 1500
17. The respondents faltered to defend the suit even prior to 24th April 1991 when the order setting them ex parte was passed and we find it incomprehensible as to how the learned Judge of the High Court could be convinced, so much so that without any reference to the case and counter-case set up by the parties and the orders passed by the trial court and the appellate court, the application under Order IX Rule 13, CPC could succeed. It is only on this short ground (that the respondents did not make out sufficient cause for their absence on continuous dates from 24th April 1991 till the suit was decreed on 17th August 1991) that the impugned order cannot be sustained in law.
18. Although we have expressed our mind about the inevitable outcome of this appeal, we have observed with a great sense of disappointment the observations made by the learned Judge extracted (supra) demonstrating a clear misconception of the legal position as to the rights of a defendant in a civil suit where such defendant has been set ex parte. Before parting, therefore, there is a need to say a few words for the guidance of the courts.
19. Pleadings, either in a plaint or a written statement, constitute the plinth on which the respective claims and defence of the parties to a civil suit rest. What a pleading ought to contain is provided in Order VI Rule 2, CPC. Only material facts, on which the party pleading relies for his claim or defence to succeed, have to be stated without the evidence by which the pleading is to be proved. Once the pleadings are complete but the defendant is set ex parte, and such order has attained finality, the defendant’s rights suffer a curtailment. He cannot produce evidence in defence and hence statements, which are in the nature of factual assertions, cannot be proved by leading evidence. Generally speaking, the limited right that the defendant, set ex parte, would have is confined to cross-examining the plaintiff’s witnesses. The effort has to be directed towards demonstrating that they are not speaking the truth and, thereby, demolish the case of the plaintiff. Essentially, therefore, in such a case the defendant has to convince the court that the case put up by the plaintiff is so false that the court ought not to accept it. However, if the defendant raises an issue on law which is traceable in the written statement, for instance, the suit is barred by limitation or Section 9, CPC is attracted, or if the relief claimed in the suit cannot be granted for reasons disclosed, the requirement of the defendant proving such defence as raised in the [2025] 4 S.C.R. Kanchhu v. Prakash Chand & Ors. written statement by leading evidence may not arise and the court may frame an issue of law and decide the same.
20. We have noticed that the preliminary issue of jurisdiction of the trial court to receive, entertain and try the suit was decided against the respondents vide an order dated 18th January, 1988. The little detail that is decipherable from the written statement of the respondents is that in view of a local enactment with regard to the Zamindari system, the respondents claimed that the trial court did not have jurisdiction. Nevertheless, it does appear that other issues were framed and since the respondents did not cross-examine the appellant, whatever he deposed was believed and accepted. We are left to wonder how the judgment of the trial court could have been faulted and the decree set aside on the ground that the defence raised in the written statement was not considered while granting relief. The observations of the learned Judge cannot be countenanced with reference to any provision of law or binding precedent.
21. We have no doubt that it is the flawed approach of the learned Judge which has resurrected the dispute between the brothers, which was finally decided over 3 (three) decades back. As has rightly been contended by Mr. Datta, the impugned order of the High Court being based on irrelevant, illogical and immaterial observations is clearly indefensible. Conclusion
22. The impugned order dated 1st May, 2024 of the High Court is set aside and the order of the appellate court dated 8th October, 2002, impugned in the writ petition, is upheld with the result that the writ petition of the respondents filed in the High Court shall stand dismissed.
23. The civil appeal, accordingly, stands allowed.
24. The pending application(s), if any, stands closed. Result of the case: Appeal allowed. †Headnotes prepared by: Nidhi Jain